On Busisiwe Mkhwebane's BS: Why I wrongly thought the Public Protector's complaint against Justice Jafta was a hoax

20 Apr 2022

Busisiwe Mkhwebane must surely know that her complaint against retired Justice Chris Jafta over wording in the Executive Members’ Ethics Code is based on an obvious lie. This is why.

When I first read an SABC News report that Public Protector Busisiwe Mkhwebane had lodged a complaint with the Judicial Service Commission (JSC) against (now retired) Constitutional Court Justice Chris Jafta, I thought it must be a hoax. Surely, I thought, not even the Public Protector is completely shameless. Even though her sizeable pension might be at risk due to her imminent removal from office, she would not, I thought, lodge a complaint that would further accentuate her dishonesty and incompetence and raise questions about her ability to distinguish between fact and fantasy.

But here we are. The complaint is not a hoax. The Public Protector has indeed lodged a complaint against Jafta for breaching the Code of Judicial Conduct for (correctly) holding that the Public Protector relied on wording in the Executive Members’ Ethics Code that is not to be found in the legally binding Code, and then concluding that President Cyril Ramaphosa was guilty of breaching this (legally non-existent) version of the Code. She lodged the complaint despite previously admitting under oath that she had made a mistake and that the legally binding version of the Code is not the one she invented or (more politely put) relied on in her report.

In my view, Mkhwebane’s complaint is a classic example of bullshit – in the sense that philosopher Harry G Frankfurt uses the term. In his book On Bullshit Frankfurt distinguishes between liars and bullshitters, arguing that while liars cared about the truth and attempted to hide it, bullshitters did not care if what they said were true or false, but only about whether the listener would be persuaded by their lies. In this case, the target audience is not the members of the Judicial Conduct Committee who will consider the complaint, but the members of the National Assembly who will decide on Mkwhebane’s impeachment.

I am aware that my interpretation might be overly generous, and that the Public Protector may be lying not to convince anyone, but merely to delay any inquiry about her unfitness to hold office to protect her pension and other benefits. More troubling would be an interpretation that the Public Protector has no recollection of her previous admission that she relied on the wrong version of the Code, or made that admission believing it to be false, but I prefer the slightly less disturbing (and thus more generous) interpretation.

Here is why I say so.

The facts

For reasons that are not clear, a previous version of the Ministerial Handbook included a wrong (and legally non-binding and thus irrelevant) version of the Executive Members’ Ethics Code. In that version, Section 2.3 states that members of the Executive may not “deliberately or inadvertently mislead the President, or the Premier or, as the case may be, the legislature”.

The correct version of the Code states that members of the Executive may not “wilfully” mislead the legislature. The wrong version of the Code allows the Public Protector to make an adverse finding against a minister or the President even when they had no intention of misleading the legislature, and it is therefore not surprising that the Public Protector relied on this version to find that then finance minister Pravin Gordhan had breached the Code.

When granting an interim interdict against the implementation of the Public Protector’s Pravin Gordhan report, the High Court pointed out that the Protector had relied on the wrong wording of the Code. In response, Mkhwebane accused the judge of “deliberately” omitting the words “inadvertently mislead” from the actual code. Her lawyers later unconditionally withdrew the accusation and offered an unreserved public apology to the wrongly maligned judge.

Both the High Court and the Constitutional Court later lambasted Mkhwebane for again relying on the wrong wording of the Code in her report on the CR17 campaign funds. The Constitutional Court judgment was penned by Jafta, who dissented in the judgment sending Jacob Zuma to prison and later penned a lamentable dissent in Zuma’s rescission application. After the court declined to consider Mkhwebane’s bizarre rescission application in the case, she lodged an even more bizarre and futile complaint against Jafta with the JSC. There are several reasons that this application does not pass the bullshit test. I provide only a few of these below.

The JSC Conduct Committee is prohibited from hearing the complaint

Section 15(2)(c) of the Judicial Service Commission Act states that complaints against judges “must be dismissed” if they are “solely related to the merits of a judgment or order”. As Mkhwebane’s complaint deals with the merits of the judgment, it will be dismissed. There is little effort in the complaint to address this blindingly obvious fact, apart from complaining that Jafta J “intentionally sought to prejudice me” and (I kid you not) because he was “impartial” and used “harsh language”. (The fact that the Public Protector could not be bothered to proofread her complaint – or pay somebody else to do so – and thus complained about Jafta J being “impartial”, tells its own sad but devastatingly humiliating story about the Public Protector’s competence.)

The Public Protector does not know (or claims not to know) that the Executive Ethics Code is only legally binding if it is gazetted after consultation with Parliament

Section 2(1) of the Executive Members’ Ethics Act requires the President to publish a Code of Ethics. But it imposes two legal requirements for the Code to have any legal effect. First, the President must consult with Parliament about the Code. Second, the President must publish the Code “by proclamation in the Gazette”. This was done in 2000 when the legally binding Code was gazetted by proclamation No. 41 of 28 July 2000: Executive Ethics Code in Government Gazette No. 21399. This is the legally binding version of the Code relied on by the Constitutional Court.

The Public Protector claims this Code was replaced by another one introduced by President Thabo Mbeki on 7 February 2007, which was published in the Ministerial Handbook after being approved by the Cabinet. She does not claim that the Code was gazetted or that Parliament was consulted before it was gazetted, thus (perhaps without realising) admitting that the version she relied on is of no legal force and effect.

She further claims that the Constitutional Court had previously referred to the Ministerial Handbook in a footnote in another judgment and that this meant that she was “legally required, in accordance with the stare decisis doctrine, to apply” the new Code. It is difficult to explain to non-lawyers why this is a laughable proposition, but let me try. First, the stare decisis doctrine holds that courts are bound by the ratio (reasons) of the decision of a higher or larger court on its own level in the hierarchy, but hardly by footnotes in that decision. Second, a footnote cannot rewrite legislation, including those imposing consultation with Parliament and gazetting as requirements for a valid Code to come into effect (although an order of the Constitutional Court could do so).

The argument advanced by the Public Protector is thus only slightly less absurd than me claiming that Bafana Bafana had won the Soccer World Cup in 1996, because a Fifa report contained a footnote referring to a document that mixed up the Africa Cup of Nations and the World Cup. But then, when confronted with this lie, me referring to the footnote as “proof” that South Africa had indeed won the World Cup, and accusing those who pointed out that we had not of the most egregious dishonesty. Would this be sad or funny? Perhaps. Would it be profoundly dishonest or shockingly ignorant? Certainly.

The Public Protector conceded under oath that her version of the Code was the wrong one

The Public Protector admitted on 14 November 2019, in an affidavit to the High Court in the very case she now complains about, that the 2000 version of the Code was the correct and binding version, stating:

“I admit that the correct version of the Code appears at paragraph 5.1.9 of the Report which provides that a member may not wilfully mislead the Legislature. I admit that in certain sections of the Report reference is made to a different version of the Code which provides that a member may not deliberately or inadvertently mislead the Legislature.”

The Public Protector pointed out that elsewhere in her report she cites the correct text, but argued in her answering affidavit that insofar as she erroneously misstated paragraph 2.3(a) of the Code, her error was immaterial. But on 16 November 2019 – two days after the admission mentioned above – the Public Protector submitted another affidavit in a different case (relating to the review of her report on Pravin Gordhan) in which she completely contradicted her 14 November admission by accusing another judge of “deliberately omitting” the words in the Code she had two days previously admitted never formed part of the Code.

In the event that she is prosecuted for perjury for advancing this false claim, a criminal court will have to determine whether the Public Protector made this false claim dishonestly or merely because of a lack of an inability to distinguish between fact and fantasy.

The Public Protector’s own lawyer in the case admitted the Public Protector lied on the wrong version of the Code

In her founding affidavit in the present case, the Public Protector did not challenge the High Court finding that she had relied on the non-existent version of the Code in her report. But even more telling, in the principal submissions made by her lawyers to the Constitutional Court in the case, they admit that the correct version of the Code is the one referring to wilfulness (see paragraph 56).

In effect, she is now complaining that Jafta J acted in breach of the Code of Judicial Conduct by accepting the averment advanced by her own lawyers in the case and which she herself had previously admitted under oath. Is this a classic case of not remembering the warning reportedly made by Mark Twain: “If you tell the truth, you don’t have to remember anything”?

Conclusion

I believe I have made out a plausible case that the Public Protector – on a generous reading – is indulging in a classic case of bullshit. As she has admitted previously under oath that she is wrong, and as her lawyers, in the very case she is now complaining about, conceded the point as well, she must surely know that her complaint is based on an obvious lie. If this is so, she must also know that the JSC Conduct Committee will be aware of this and will dismiss the complaint, but must believe that her target audience might believe her false claims.

Alternatively, and much worse, she may be beyond bullshit and may not care what anyone believes at all – as long as her complaint can be used to delay her impeachment until her term as Public Protector comes to an end. DM

Pierre de Vos teaches Constitutional law at the University of Cape Town’s Law Faculty, where he is head of the Department of Public Law. He has a legal blog, Constitutionally Speaking.

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